Eric Slepak – Just Court ADRhttp://blog.aboutrsi.org
The blog of Resolution Systems InstituteTue, 30 Jan 2018 17:09:37 +0000en-UShourly1Do Android Mediators Dream of Electric Agreements?http://blog.aboutrsi.org/2018/program-design/do-android-mediators-dream-of-electric-agreements/
http://blog.aboutrsi.org/2018/program-design/do-android-mediators-dream-of-electric-agreements/#respondTue, 30 Jan 2018 17:09:37 +0000http://blog.aboutrsi.org/?p=1802With the new year being still fresh enough that some of us, and hopefully not just me, continue to write 2017 on their checks, the future is at the forefront of many of our minds. Whether we’re setting ambitious goals for the year to come, or just looking forward to putting the previous year behind us, I think it’s pretty natural for us to spend this time of year fixated on the road ahead. For me, this has translated into thinking a lot about the cutting edge of the ADR field: Online Dispute Resolution, or ODR.

I’ve been fortunate to have access to a lot of great resources and contacts over at Tyler Technologies, Court Innovations, the New York State Unified Court System and the American Bar Association (specifically the Center for Innovation, Center for Pro Bono and the Section of Dispute Resolution). I’ve also been able to learn a lot from odr.info, and keep up with the latest developments following onlinedisputeresolution.com; if you are fairly unfamiliar with ODR, these are two great places to start.

Though I feel like I still have so much to learn about this field, I’ve greatly enjoyed sharing the iota of knowledge I possess with my colleagues. Last year, I chaired the ODR Subcommittee for the Future of the Law Summit put on by the Chicago Bar Association (CBA); you can find the outline of our recommendations here. In November, I got to make additional presentations on ODR to the CBA’s ADR Committee and the Circuit Court of Cook County’s Law Division Court-Annexed Mediation Seminar. I’ve also had the opportunity to speak with a handful of court administrators throughout the country about ODR.

Through all these discussions, the one constant I’ve had is a refreshing lack of blank faces. Whether someone’s response is jubilant enthusiasm, healthy skepticism or just a constant stream of questions, it’s clear ODR is a topic that gets people buzzing. In that vein, I thought I would share the things that excite me about this emerging field (before focusing my next entry on the challenges it must overcome).

Access to JusticeIf implemented properly, ODR could be a huge boon to individuals typically underserved by the justice system.

Imagine the case of someone who works a retail job and who has spent all of their paid leave for the year attending to a medical situation. They now have considerable medical debt on which they have defaulted.

Meanwhile, the hospital has sold the debt to a collection mill, who is taking the debtor to court. Notice of the suit is improperly served, and the debtor does not even know they are being sued. Even if they did have notice, they would be unable to take valuable time off of work to defend themselves in court. As a result, a default judgement is rubber stamped by an overburdened court, and the non-appearing defendant’s wages become garnished as a result, exacerbating the very issues which have led to this outcome. This is not justice.

An ODR solution, carefully overseen by court administration, could address many of the problems we see here. Service could be conducted electronically, going to the defendant’s email and/or as a text message. Software could ensure that debt collectors are submitting appropriate evidence in support of their claims. An asynchronous chat platform could allow the parties and/or their counsel to negotiate a settlement outside of court, and failing that, a video mediation could be scheduled. Judges and court administrators could oversee the process (outside of the communications, which would remain confidential to the parties and attorneys) and either outright mandate use of the ODR platform, or incentivize plaintiffs to file online by offering a reduced filing fee.

These are just a handful of examples of how integrating more technology into the court system has the potential to tip the scales of justice backs towards even.

Streamlined Dispute ResolutionWe live in a world that is constantly evolving and we expect the institutions which govern that world to keep up. Our court system might not have been built with rapid technological change in mind, but that doesn’t mean it can’t adapt. By bringing ODR into the fold, courts can leverage the advances to computing power which have broadened people’s access to the world around them. And to be perfectly blunt, if brick-and-mortar courts do not offer digital options for dispute resolution, there’s no reason to believe that people won’t turn to someone who can provide these services online, as people have done for shopping, hailing a cab, or booking a place to stay.

Luckily for the courts, there are carrots to go along with the sticks. Innovations in e-filing have already streamlined docket management for many courts across the country, and certain components of ODR can be built on top of that infrastructure. Further, as we have seen in traditional ADR, under the right circumstances, ODR can potentially resolve cases more quickly and economically than traditional litigation. And by allowing disputants to guide themselves to resolution using decision wizards and other software that lays out their options in plain language, they are more invested in the final agreement, which research has long told us will make them more likely to comply, keeping them out of court.

Continuous ImprovementThrough webinars and product demonstration, I’ve gotten to see several of these platforms in action. While the front-end capabilities are rightly exciting people, the back-end analytics could be the part that really revolutionizes how we approach conflict. At RSI, we’ve been espousing the cruciality of collecting reliable data about court programs for two decades, and made it the hallmark of the programs we administer. We even designed a model survey toolkit that just about any court can adapt to help them collect the data.Collecting good data is so important because it allows the court to make decisions about program design that have material consequences on the lives of citizens.

In the past, even a well-resourced program would need to devote countless work-hours to collecting, cleaning, analyzing and reporting on the data. This effectively put the timeline for making and implementing recommendations on how to improve programs into months, if not years.

Now, however, many ODR solution have built-in, real-time data tracking. Reports can be generated with a few clicks of a button. Down the road, through advances in artificial intelligence and natural language generation, platforms could make recommendations about how to improve the experience, or even automatically make such improvements. Technology has the potential to significantly decrease the burden and increase the speed at which our courts have the capacity to improve their services.

Danger, Will RobinsonI hope you’ve enjoyed this exploration of the exciting possibilities that ODR has: there is a Star Trek quality to the promise that ODR yields. However, for all its potential upside, there is still great risk at that intersection of technology and justice – call it the Black Mirror effect. I’ll be dedicating my next post to exploring the challenges ODR must overcome.

]]>http://blog.aboutrsi.org/2018/program-design/do-android-mediators-dream-of-electric-agreements/feed/0Takeaways from a Child Protection Mediator Traininghttp://blog.aboutrsi.org/2017/training-skills-techniques/takeaways-from-a-child-protection-mediator-training/
http://blog.aboutrsi.org/2017/training-skills-techniques/takeaways-from-a-child-protection-mediator-training/#commentsMon, 06 Feb 2017 21:47:50 +0000http://blog.aboutrsi.org/?p=1715On January 20-21, RSI put on an advanced two-day training for the mediators in our new Child Protection Mediation Program operating out of Geneva, IL. This training was the culmination of our efforts to put in place a dynamic and collaborative new forum to address child abuse and neglect cases in Illinois’ 16th Judicial Circuit Court. Based on the outcome of the training, I feel confident that our new program will be a huge boon to Kane County, the jurisdiction which the program serves. I also am glad to have taken away some ideas about how to create a better mediator training event, which I get to share with all of you.

Child protection cases involve a child who has been removed from their home following a substantiated claim of abuse or neglect, the state (through the State’s Attorney’s Office and the Department of Child & Family Services), the child’s family and guardians, and a guardian ad litem. The ultimate goal, typically, is to reach permanency, or the conditions under which a child can live in a safe, stable and permanent home. When possible, courts will show a preference for biological parents to raise their children. However, sometimes parents are not necessarily in a position to do that, and the state will require parents to get certain services, such as educational classes and various forms of counseling, and maintain certain conditions, e.g. stable employment and housing, before their children can be returned to them. Under more severe circumstances, parents will lose guardianship, or perhaps their parental rights altogether. Mediation in child protection cases allows family members to address underlying issues in their relationships, caseworkers to work with families on services and next steps, and all participants to explore what is the best outcome for the child.

Our program is lucky to have found ten very qualified, dedicated mediators who will be volunteering their services. While these mediators all had some familiarity with the abuse and neglect court process, and are experienced mediators, none have had an opportunity to mediate these types of cases before–which is very understandable, given that this program is only the third of its kind in the entire state (and unlike say, divorce mediation, there is no real corollary outside of the court system that would furnish these mediators an opportunity to practice). We were thus tasked with designing a training curriculum that could take their mediators’ skillsets, and apply them to the child protection context, while providing them the necessary background on what these cases look like in Kane County.

Trainer Stephanie Senuta provides trainees insight into the various topics that typically come up in child protection mediation.

Luckily, we had some aces up our sleeves. RSI Executive Director Susan Yates has over 20 years of experience training mediators. Kevin Malone, who will manage this program and co-mediate with the volunteers, showed the trainees how to apply one’s mediation skills in this new setting. We also had a great deal of help from Assistant State’s Attorney Lark Cowart, and a group of attorneys, caseworkers and a Court Appointed Special Advocate (who serve as the guardian ad litem in Kane County) to help us role play a mediation session. And most instrumental was Stephanie Senuta, a seasoned mediator who for many years worked for the Cook County Child Protection Mediation Program, and was able to bring to this training a wealth of insights, anecdotes and inspiration. Together, everyone really brought the training to life by adding to the trainee’s substantive knowledge and providing real-world examples that better prepare them for what they face ahead.

Walking away from that training, I have a few insights I think are worth sharing with other programs who are looking to train a group of neutrals, be they child protection mediators or any other kind:

There’s no substitute for authenticity. For as much hard work as our staff put into this training, it wouldn’t have been anywhere near as successful had we not had real stakeholders there to flesh out our simulations and lectures with real examples and insights into the thought processes of the people at the table. An added benefit as a training designer is that you probably won’t have to write a script for these folks – they’ve got more than enough material to improvise! That being said, it does take work to get these people into the room. Hopefully, you’ve been seeking buy-in from them since day one: it’s particularly important in programs like this one where there are a lot of repeat players whose participation is essential to productive mediation sessions. Offering your stakeholders regular meetings and inviting open communication are tremendously helpful in overcoming potential hurdles that your program will face, and building a sense of rapport that generally serves programs well. If you’ve been doing that, you’ll hopefully have at least a handful of people so excited about your program that they’re more than willing to lend their knowledge and acting skills. Throwing in a free lunch doesn’t hurt.

Adapt. During the training, Susan told the trainees, “This is the only time where you will mediate these cases without real stakes on the line. So it’s a great time to try something new you wouldn’t normally do.” As trainers, a similar flexibility and willingness to divert from the script is also a huge asset. No training curriculum in the world can cover every single topic that a mediator might encounter when they sit down at the table (which underscores the need for continuing education, a topic I’m sure I’ll touch on in future posts). The goal of training mediators for a program, particularly a new one, should be to give them the tools they need to feel comfortable handling these cases in a safe and appropriate way. To the extent you see a gap between your planned curriculum and the mediators’ progress on that goal, you should not be afraid to do a little tweaking on the fly, and steer your mediators toward success.

Do, See, Hold. It’s easy when you have a room full of veteran mediators, some of whom may be retired judges, or attorneys or other professionals with decades of experience, to assume they are immune to pedagogical razzle dazzle. The truth is, we all benefit from dynamic instruction, particularly when we are trying to absorb a lot of material in a condensed period of time, a scenario no doubt familiar to mediator trainers and trainees alike. A slide presentation, while a good way of capturing and organizing information, can get monotonous, and offers the pupil a mostly passive experience. Giving them a physical manual they can manipulate, even if it is just the same content as the presentation, allows for a higher degree of interaction. Better still if the manual gives them different content, or includes blanks for them to fill in. For our trainings, role play simulations and small group exercises serve a critical function in teaching — and also give the trainees a break from hearing our voices! These methods are far from an exhaustive list, but no matter how you approach training, it’s good to take a step back, look at your agenda, and think about whether the mix of instruction methods you utilize is conducive to absorbing the information.

]]>http://blog.aboutrsi.org/2017/training-skills-techniques/takeaways-from-a-child-protection-mediator-training/feed/1Tough Lovehttp://blog.aboutrsi.org/2016/research/tough-love/
http://blog.aboutrsi.org/2016/research/tough-love/#respondMon, 18 Jul 2016 20:55:56 +0000http://blog.aboutrsi.org/?p=1679A recent study out of Columbia University suggests that nice mediators finish last. Inspired by the familiar trope of bickering siblings setting aside their differences to unite against a stern parent, researcher Ting Zhang created simulations in which student participants attempted to reach resolution using text-based chatrooms. Zhang added a further twist to the experiment by introducing computerized participants and/or mediators in some of the sessions (though all participants were told they were interacting with other humans). The participating students were randomly assigned a hostile mediator, a neutral mediator or a nice mediator. Across all of these different scenarios, however, the data showed that agreement was more likely when the participants teamed up against a hostile mediator, and that the quality of the agreements reached was similar to those reached with a nice mediator.

As Professor Jeanne Brett points out in a Scientific American article about the study, the simulated nature of this study prevents it from capturing the true emotional investment the parties make when heading into a mediation session, and therefore, these results should be taken with a grain of salt. Further, Zhang and her co-researchers themselves stipulated that the study was limited in its ability to conclude exactly what “mean” behaviors were more effective than others, as well as how the degree of hostility affected the participants. The context is limited as well. The students were able to negotiate separately from the mediator, something that is not done in a traditional mediation setting. Further, the students did not have a relationship with one another and would not have one in the future. As previous researchers have discovered, context matters.

In considering this research, we should also be cognizant of outcomes. The Zhang study looked only at probability of agreement and the content of those agreements. Other outcomes, which may be negatively affected by hostile mediator strategies, can have a more lasting effect on the parties. In a study of small civil claims in Maryland, mediators who used strategies that may be considered to be “nice,” such as reflecting the parties’ interests and emotions, were more likely to leave the parties with an increase in self-efficacy and their sense that the court cares about them. Conversely, mediations involving neutrals who used strategies that were more directive (though not necessarily hostile) — like offering opinions or advocating for their own solutions — resulted in parties being less satisfied, and less likely to say the outcome was working or that they changed their approach to conflict.

From our perspective as court-connected dispute system designers, we should think about how mediator hostility might have a negative impact on traditionally underserved participants. A recent survey conducted by the National Center for State Courts found, among other things, that people both prefer ADR to the court system, and perceive that people of color and disadvantaged socioeconomic backgrounds face worse outcomes in the traditional court system and within the justice system as a whole. While the use of more stern mediation skills might offer neutrals an effective tool in working with the parties in certain limited situations, I think it’s important to balance that against the broader consequences of how such behavior could work to deny these disputants meaningful access to justice.

Many parties are drawn to mediation as a facilitative and collaborative alternative to the more rigid and top-down venue of traditional litigation. Part of this preference, especially for people of color, can stem from a distrust of and disconnect from authority. If mediators start adopting hostile behaviors, they risk coming off as overly authoritative and paternalistic, alienating those people who look to ADR as an oasis of justice in a desert where they traditionally have been deprived. While I think this research is fascinating and hope it inspires further experimentation with new techniques, I also believe that we should consider the big-picture consequences before tough love becomes a part of the court-connected mediator’s repertoire.

]]>http://blog.aboutrsi.org/2016/research/tough-love/feed/0Child Protection Perspectives: Initiating the Conversationhttp://blog.aboutrsi.org/2016/program-design/child-protection-perspectives-initiating-the-conversation/
http://blog.aboutrsi.org/2016/program-design/child-protection-perspectives-initiating-the-conversation/#respondFri, 15 Apr 2016 14:25:34 +0000http://blog.aboutrsi.org/?p=1645As April is National Child Abuse Prevention Month, we at RSI wanted to shine some attention on the work we are doing related to the development of the new Child Protection Mediation Program in the Sixteenth Judicial Circuit Court of Kane County, Illinois, as well as the other work RSI has done in using court ADR as a tool to address the issues of child abuse and neglect.

While our work at RSI is often about data, when it comes to child protection (a term which is meant to capture the broad array of cases in which children have been removed from their homes due to abuse and neglect), it is hard not to talk about the personal element. Prior to joining RSI, much of my work had been as an advocate at the intersections of special education, juvenile justice and the child welfare and foster systems. These seemingly independent worlds actually collidefrequently, and illustrate some of the many complexities involved in handling cases of child abuse and neglect. When I worked as an intern in the Legal Aid Society’s Juvenile Rights Practice, we were brought in to represent children in criminal matters, but to fully address their needs we had to triage and advocate for them with regards to their educational issues and home situations. When you factor in families whose primary language is not English and/or whose culture differs from American norms, you can really appreciate the juggling that family court judges have to do to accommodate all the interests before them.

You can also understand why the judges in Kane County, site of one of our three foreclosure mediation programs, asked for our assistance in creating a program to facilitate the complicated conversations needed to give these kids a real shot at a stable, loving home. In 2014, the last year for which data is available, there were some 4,200 allegations of abuse and/or neglect, over 1,000 of which were substantiated. Not all of those cases will come before the court, but many will, and when you multiply that number by the number of issues to be resolved in each one, the need for an open, collaborative forum to address these cases becomes clear.

As RSI’s Resource Center Director, my work is focused on making the court ADR research we and others have developed accessible to others. My goal is to make sure that every court ADR program administrator, judge and stakeholder has the information they need to ensure their program is maximizing its potential to provide access to justice. To be sure, it’s a step removed from the work of my colleague Hanna Kaufman, Director of ADR Programs, or our Kane County courthouse-based Program Manager, Kevin Malone, both of whom are firmly in the trenches (they’ll be writing a post later this month with their perspectives). However, my role as RSI’s “information liaison” allows me to empower courts to address some of our justice system’s biggest problems, and I can think of no more worthwhile problem to address than improving the outcomes of our most vulnerable children.

I am really looking forward to seeing what RSI, the 16th Judicial Circuit Court of Kane County and our other partners can do with this program. One example of the fruits of our work in this field is our 2010 evaluation of Cook County’s Child Protection Mediation Program; we hope that our work in Kane County will similarly enable us to share the insights we gain from administering and monitoring the program with other courts running or trying to develop these types of programs. Additionally, our CourtADR.org Research Library contains many items in this arena, and we expect it to add many more as we further hone our expertise on the subject.

If you are part of a court-connected child protection mediation program, I’d love to hear from you. Just as these programs facilitate the conversations that help repair relationships and prevent further abuse or neglect, I hope that RSI’s outreach will facilitate the conversations that strengthen child protection mediation programs nationwide.

]]>http://blog.aboutrsi.org/2016/program-design/child-protection-perspectives-initiating-the-conversation/feed/0In Mediation, As On Broadway, It’s All About The Room Where It Happenshttp://blog.aboutrsi.org/2016/fun/in-mediation-as-on-broadway-its-all-about-the-room-where-it-happens/
http://blog.aboutrsi.org/2016/fun/in-mediation-as-on-broadway-its-all-about-the-room-where-it-happens/#commentsFri, 26 Feb 2016 16:34:39 +0000http://blog.aboutrsi.org/?p=1625If you caught the Grammys last week, I hope you got a glimpse of the live-from-Broadway performance of the opening number from the smash hit Hamilton. One of the show’s many highlights, “In the Room Where It Happens,” is a show-stopping ode to backroom negotiation and the art of compromise that focuses on New York Senator Aaron Burr’s desire to get to the table. Though Burr serves as the foil to protagonist Alexander Hamilton and (spoiler alert) the source of Hamilton’s ultimate defeat, he is not an unsympathetic character; there are many moments throughout where the audience empathizes with Burr’s dreams. Case in point, Burr’s goal of being part of the action mirrors a recurring theme we see parties deal with in ADR: who gets a say in the matter when there are lots of parties involved and/or many different interests at stake? In other words, who gets to be in the room where it happens?

A couple examples illustrate some of the issues involved. In one, a Charleston, South Carolina real estate development that threatened to disrupt the historical character of its neighborhood led to a contentious showdown between the developers and local residents. The case made its way to mediation after the developers appealed a rejection of their plans by the city’s Board of Architectural Review and the judge ordered the developers and the Board to mediation. Representatives from local neighborhood associations and preservation societies were allowed to participate after voicing concerns, notwithstanding a finding that they had no legal standing in the case. Still, this was not enough for others in the community, who thought the “secrecy” of the mediation discussions was at odds with the public’s interest in their neighborhood. This highlights an internal struggle many of us in the ADR community — particularly those involved in system design — often face as we balance the benefits confidentiality offers in helping parties resolve their issues candidly with the risks of depriving individuals and communities of their access to procedural justice.

A slightly different take on the participation problem occurred in Hawaii. There, a suggested use of the traditional Hawaiian conflict resolution method Hoʻoponopono fell apart as the number of parties and the complexity of their relationships to one another and the case at hand grew. A highly publicized protest of the construction of a telescope on sacred ground resulted in numerous arrests, and 21 arrestees requested the unique ADR process instead of a trial. The judge and prosecutor approved the request, contingent on all parties agreeing to participate. However, as the summer progressed and more arrestees joined the request to participate in Ho’oponopono, the state attorney general withdrew support, believing it would no longer be a constructive option. Part of me wonders if anything could have been done differently to make the Ho’oponopono process workable in this case.

Participation is also an issue we at RSI are pondering as we start up our new Child Protection Mediation Program in Kane County, Illinois. These cases, which invite parties to come together when children have been removed from their parents due to alleged abuse or neglect, by their nature involve many different people: the children, their biological parents, other family members, government agencies, foster parents and attorneys for most if not all parties. As we work to formulate the rules for our program, we have to be mindful of making sure that we not only get all of the relevant parties to the table, but also that all parties have the support they need to adequately address their needs and interests.

Not being in the room where it happens (or being there without the support to advocate effectively for yourself) can be an incredibly frustrating experience. “We dream of a brand new start,” Aaron Burr sings in the song’s final verse, “but we dream in the dark for the most part.” As decision makers who design dispute systems, we hope we can take a page from Burr and Hamilton, and strive to shine a light on those parties and interests that need it most.